Case Note: GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32
This appeal considered whether the New South Wales Court of Appeal had erred in ordering a permanent stay of proceedings seeking damages for personal injuries arising out of alleged sexual assault in 1968. The Court of Appeal granted the stay on the basis that there could not be a fair trial given the delay. The majority of the High Court disagreed, considering that legislative amendments removing time limits on such proceedings entailed a “fundamental change to the legal context” in which an assessment of unfairness had to be made – and that the respondent had not proved there would be unfairness on the facts of this case.
Kiefel CJ, Gageler, Steward, Gleeson and Jagot JJ
1 November 2023
Background
The appellant, GLJ, commenced proceedings in the Supreme Court of New South Wales in 2020 against the respondent Diocese of Lismore. [5]. In those proceedings GLJ alleges that, in 1968, when she was 14 years old, she was sexually assaulted by a Catholic priest in the Diocese, Father Anderson. [5]. She alleges that she continues to suffer from PTSD and other injuries because of the assault, and that the Diocese is liable for those injuries. [5].
In November 2020, the Diocese filed a motion in which it sought orders that the proceedings be permanently stayed pursuant to s 67 of the Civil Procedure Act 2005 (NSW) (which provides that the court may stay any proceedings before it, either permanently or until a specified day), or dismissed pursuant to r 13.4(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW) as an abuse of process. [8]. The Diocese submitted that such an order was appropriate because Father Anderson was long deceased, and in those circumstances (in which it could not ask him about the allegations, or call him as a witness), “there could not be a fair trial”. [9].
At first instance the Diocese’s notice of motion was dismissed. [10]. However, the Court of Appeal allowed an appeal, concluding that a fair trial could not be held and that an order permanently staying the proceedings should be granted. [12]. The Court of Appeal placed some emphasis on the death of Father Anderson, considering that: “[d]eprived of the ability to obtain any instructions from Anderson by his death, the [Diocese] has no means for investigating the facts” (per Brereton JA); and that “Father Anderson … is a critical witness … and there is no other material that sheds light on his putative response to GLJ’s claims” (per Mitchelmore JA). [13].
The High Court granted special leave to GLJ to appeal from the Court of Appeal’s orders. In the result, the majority (Kiefel CJ, Gageler and Jagot JJ) allowed the appeal, concluding that no permanent stay was justified and that GLJ’s proceedings should go to trial. [4]. Justices Steward and Gleeson each dissented. [160], [192].
A change in the legal landscape
The majority of the High Court placed considerable emphasis on legislative reforms enacted in 2016, by which time limits for bringing proceedings for death or injuries resulting from child abuse were removed (in Queensland, see Limitations of Actions Act 1974 (Qld) s 11A, there being equivalent provisions in each other State and Territory). [34]. The Court noted that the amendments responded to recommendations by the Royal Commission into Institutional Responses to Child Sexual Abuse, and that in introducing the Limitation Amendment (Child Abuse) Bill 2016 (NSW), the Attorney-General of NSW had observed that:
“It is now widely understood that, due to the injuries inflicted on them by their abusers, survivors of sexual and other child abuse often take decades to understand and act on the harm arising from the abuse.” [29].
The majority considered that the removal of any limitation period for proceedings for death or injury resulting from child abuse involved “a fundamental change to the legal context in which the power in s 67 of the Civil Procedure Act (and equivalent inherent jurisdiction of a court) [to grant a permanent stay] is to be exercised”. [34]. The majority said that “the effect of the passing of time on the trial fall to be evaluated” in the “radically new context” brought about by the amendments. [41], [43].
In particular, in determining whether there are “exceptional circumstances” justifying a stay, the Court considered that the new context brought about by the amendments meant that the “mere effluxion of time and the inevitable impoverishment of the evidence which the passing of time engenders cannot attract the quality of exceptionality which is required”. [52].
Why the appeal was allowed in this case, and the permanent stay removed
The majority concluded that the Diocese had not proved that there could be no fair trial. [15]. Notably, the Diocese alleged this was the case only on the basis of the death of Father Anderson, before any allegation relating to GLJ could be put to him, and in circumstances where he would have been a “critical witness”. [66].
The majority rejected the submission that the Diocese was “utterly in the dark” about whether Father Anderson sexually assaulted GLJ, noting that there was still a number of pieces of circumstantial evidence which it had access to, including knowledge about: the parishes Father Anderson had been attached to (and the dates); the nature of work a priest in his position would have performed; complaints made about Father Anderson and alleged sexual offending against young boys; the fact Father Anderson had been referred to a psychiatrist for treatment of his “problem” (namely, alleged sexual interest in young boys); and his response to those allegations of sexual misconduct. [67].
The majority considered that all that had been lost to the Diocese by the death of Father Anderson was the opportunity of asking him if he had sexually assaulted GLJ, and the possibility of calling him as a witness. [75]. That, however, “does not make a trial of GLJ’s claims unfair”. [65]. The absence of unfairness was fortified by the following circumstances adverted to by the majority:
- Father Anderson is not a defendant to the proceedings. The Diocese might have obtained other evidence if he had been alive, but it did not need to take his “instructions”. [76].
- There was evidence from which it could be inferred that, were he alive, Father Anderson would have denied the allegations in any event. [77].
- The Diocese had had an opportunity to make further inquiries about whether Father Anderson had sexually abused children during his laicisation process, following its knowledge of his “obvious sexual interest in boys”, but had chosen not to do so. [79].
- The death of Father Anderson had not prevented the Diocese from “subsequently finding to its own satisfaction that complaints of sexual abuse by him while a priest had been substantiated”. [80].
- There is a considerable body of documentary evidence of arguable relevance to the proceedings. [81].
In summary, the Court of Appeal had erred in concluding there could not be a fair trial of the proceedings. [82]. Accordingly, the High Court ordered that the appeal be allowed, and the permanent stay set aside. [82]-[83].
The dissenting judgments
In dissent, Steward J considered that the Court of Appeal had been right to order a permanent stay, including because the delay had led to a “critical loss of an ‘opportunity’ by the Diocese to defend the claim” (by knowing what Father Anderson might have said, and by having an opportunity to speak to others who might have had interactions with him when he was a priest). Further, because any trial would effectively proceed “without any proper contradictor” in circumstances where the Church “does not know, one way or the other, whether Mr Anderson committed the sexual assault”. [150].
Similarly, Gleeson J considered that the Diocese had “lost every realistic opportunity that previously existed to inform itself of the true facts”, and that it was “manifestly unfair” to require to Diocese to respond to the appellant’s uncorroborated claim in those circumstances. [187].
The standard of appellate review
Finally, it is worth noting that the High Court unanimously held that the decision to refuse, or grant, a permanent stay of proceedings on the grounds that any trial will be necessarily unfair, or so unfair and unjustifiably oppressive as to be an abuse of process, is an “evaluative but not a discretionary decision”. [15]. In the words of the majority, proceedings “either are or are not capable of being the subject of a fair trial or are or are not so unfairly and unjustifiably oppressive as to constitute an abuse of process”. [15].
That had the consequence that the applicable standard of appellate review is the “correctness standard” explained in Warren v Coombs (1979) 149 CLR 531, and not that specified for discretionary decisions in House v The King (1936) 55 CLR 499. [15].
